A Template for Non-Precedential Appellate Opinions
With non-precedential opinions on their way out at the Court of Appeals for the Federal Circuit, Professor Hal Wegner suggests that the per curiam decision in In re Huber (Fed. Cir. December 20, 2005) represents a good model for a substitute for non-precedential and Rule 36 affirmances. Here's what he would do to make it even better:
First, there should be a nomination of the counsel for the parties.
Without consideration of the merits of the Huber case itself (which is
impossible to glean from the opinion, alone), there are too many litigants
before the court who take frivolous positions, yet maintain an apparently good
track record because their names do not appear on the Westlaw and Lexis
databases. Nomination of counsel ends anonymity and provides the public
consumers – the general counsel of corporations and individual inventors as well
– more transparency to see who’s doing a good job – and who’s not.
Second, where there is an affirmance of an opinion below, it is useful to
know what that opinion says. This is particularly true of the “black hole”
of PTO affirmances where it would be of great benefit to both litigators at the
Federal Circuit and – particularly – PTO prosecutors to get a better glimpse
into the largely shrouded world of ex parte case law at the Board. Here,
the Solicitor has it within his power to post all Board decisions on the PTO
website at the time of a Notice of Appeal to the court either on his own or
through a simple rule-making change.